Opinion
1 CA-JV 12-0282
06-04-2013
JUAN Z., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, T.Z., J.Z., D.Z., Appellees.
Christina Phillis, Maricopa County Public Advocate by Suzanne Sanchez, Deputy Public Advocate Attorneys for Appellant Thomas C. Horne, Attorney General by Laura J. Huff, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD20056
The Honorable Aimee L. Anderson, Judge
AFFIRMED
Christina Phillis, Maricopa County Public Advocate
by Suzanne Sanchez, Deputy Public Advocate
Attorneys for Appellant
Mesa Thomas C. Horne, Attorney General
by Laura J. Huff, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Tucson THUMMA, Judge ¶1 Juan Z. appeals from the superior court's order terminating his parental rights as to T.Z., J.Z. and D.Z. Juan argues the court erred by failing to make the requisite findings as to D.Z., by concluding Juan substantially neglected or willfully refused to remedy the circumstances keeping all three children in an out-of-home placement and by allowing an untimely amendment to the motion to terminate parental rights. For the reasons that follow, the order is affirmed.
The caption in this appeal is amended to refer to the children by their initials.
FACTS AND PROCEDURAL HISTORY
On appeal from an order terminating parental rights, this court views the evidence in the light most favorable to sustaining the superior court's findings. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶2 T.Z., J.Z. and D.Z. are the children of Juan Z. and Amber H. The Arizona Department of Economic Security (ADES) became involved in January 2011 when J.Z., then six months old, was diagnosed with a depressed skull fracture. The parents reported that T.Z., then one-and-one-half years old, had fallen on J.Z.'s head. Juan said he "immediately detected a 'dent' on the side of [J.Z.'s] head," but did not seek immediate medical treatment. Instead, the family walked for more than 90 minutes to an unrelated appointment and, only afterward, took J.Z. to a medical clinic. The treating physician determined the parents' explanation was inconsistent with J.Z.'s injury, but could not determine what caused the skull fracture. ¶3 A police investigation exposed serious safety hazards in the apartment shared by Juan, Amber and the children, including piles of trash, dirty diapers, clothes and toys reaching to within one foot of the kitchen counters. ADES had twice received reports of unsanitary living conditions in the preceding 18 months. ¶4 ADES initially instituted a safety plan, placed T.Z. and J.Z. at the maternal grandmother's house and started Family Preservation Services. In March 2011, when Juan and Amber had failed to alleviate unsanitary living conditions and safety hazards despite moving to a different apartment, ADES filed a dependency petition as to T.Z. and J.Z. alleging neglect, among other grounds. ADES filed a comparable dependency petition as to D.Z. after his birth in June 2011. The court found all three children to be dependent, and they were placed in an out-of-home placement. ¶5 ADES provided Juan with parent aide services to facilitate visitation. Because of an unresolved lice infestation in the parents' home from at least February 2011, however, visitation did not begin until July 2011. Over the next year, Juan attended 29 of 45 scheduled visits, with similarly sporadic participation in parenting skills sessions. ADES terminated parent aide services in May 2012 due to "parental non-compliance and no progress." When testifying at trial, Juan could not recall his last visit with the children, which had occurred before the trial began some six weeks earlier. ¶6 After missing his first scheduled appointment, Juan participated in a psychological evaluation. When asked what triggered ADES's involvement, Juan failed to mention J.Z.'s skull fracture until prompted by the psychologist, instead asserting that ADES accused him of neglect because his apartment had been in disarray temporarily. Juan accepted no responsibility, instead suggesting others had filed false reports against him. Juan also seemed defensive and failed to respond to questions about disciplining the children; Amber, in contrast, suggested that Juan's disciplinary style involved "screaming" at the children. The evaluation recommended therapy to address Juan's aggression and anger management issues. ¶7 ADES provided individual, anger management and couples therapy for Juan. Juan was "defiant" in couples counseling and "controlling" in his relationship, and seemed not to believe he had a problem. Juan failed to actively participate in anger management and individual counseling as well, would not engage with the therapist or acknowledge the need to work on improving his behavior. Juan's ADES case manager described Juan as "[v]ery defiant. Very argumentative. Didn't think that -- he was just always upset about something, blaming everybody for everything. . . . And he just didn't think he needed to work on anything." ¶8 Juan's psychological evaluation recommended a psychiatric evaluation, which was scheduled for eight months later. This delay was caused in part by Juan's failure to follow through with ADES's instruction to apply for Arizona Health Care Cost Containment System (AHCCCS) insurance to cover services through a private behavioral health provider. After Juan failed for four months to complete the process despite monthly reminders, the ADES case manager was able to make a referral to an internal provider. The psychiatric evaluation noted that Juan displayed narcissistic and antisocial characteristics and irritable and aggressive behaviors, denying nearly all his problems. The evaluation reported an "extremely poor prognosis," noting "active involvement in psychotherapeutic relationships" would be necessary to benefit Juan. The evaluation also reported Juan "does not believe that there is anything wrong with him or his situation, [he] therefore has no motivation to seek treatment or change his behavior." ¶9 Juan's psychological evaluation suggested a risk of potential episodic alcohol abuse, a "volatile" combination given Juan's impulse control and anger management issues. ADES referred Juan for urinalysis (UA) testing for alcohol or other substance abuse issues. Juan delayed nearly three weeks before complying with the first UA, and completed only 19 (including two diluted samples) of 69 required UAs from January 2011 to July 2012, with no compliance at all after February 2012. ADES also referred Juan for substance abuse assessment and treatment, which was closed when Juan self-reported not having a problem. ¶10 ADES moved to terminate Juan's parental rights in March 2012, alleging grounds of nine-months' time in care as to T.Z. and J.Z. and six-months' time in care as to D.Z. Three days before the severance hearing was to begin in September 2012, ADES moved to amend its severance motion to allege fifteen-months' time in care as to all three children; ADES renewed this motion one month later, two weeks before the final day of the severance hearing. The superior court allowed the amendment as to T.Z. and J.Z. only, as D.Z. had reached fifteen months in care only after the hearing began. ¶11 After the three-day trial, the court terminated Juan's parental rights as to T.Z. and J.Z. on nine-months' and fifteen-months' time in care grounds and as to D.Z. on six-months' time in care, and upon a finding that severance would serve the best interests of all three children. Juan timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 8-235.
The superior court's order also terminated Amber's parental rights as to all three children. Amber did not appeal from that order and is not a party to this appeal.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
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DISCUSSION
¶12 Juan does not dispute the superior court's finding that severance was in the best interests of the children or that the children had been in out-of-home placements for the requisite time periods (nine, nine and six months, respectively). On appeal, Juan argues insufficient evidence supported the superior court's finding that Juan substantially neglected or willfully refused to remedy the circumstances causing all three of his children to be in an out-of-home placement. Juan also contends the court abused its discretion in terminating his parental rights as to D.Z. by failing to make an explicit written finding that ADES had made diligent reunification efforts. Juan further argues the court erred by allowing an untimely amendment to ADES's severance motion in violation of court rules and due process. Each contention is addressed in turn. ¶13 The superior court is authorized to terminate the parent-child relationship only upon a finding that clear and convincing evidence supports at least one statutory ground for severance and that a preponderance of the evidence shows severance to be in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). This court reviews the superior court's severance order for an abuse of discretion, accepting the superior court's factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). Statutory interpretation, however, is a legal issue subject to de novo review. Id., 207 Ariz. at 47, ¶ 9, 83 P.3d at 47. ¶14 The superior court may terminate a parent's rights based on the child's time in care pursuant to A.R.S. § 8-533(B)(8)(a)-(b) if: (1) the child has been in an out-of-home placement for nine months or, for a child under the age of three, six months, (2) "[ADES] has made a diligent effort to provide appropriate reunification services" and (3) "the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." The relevant circumstances are those existing at the time of severance. Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App. 2007). ¶15 The statute's requirement that a parent "substantially neglect or willfully refuse to remedy" does not apply to "parents who make appreciable, good faith efforts to comply" with ADES's remedial programs. In re Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994). However, this ground for "[t]ermination is not limited to those who have completely neglected" remedial services. Id. Accordingly, severance may be warranted for a parent who "makes only sporadic, aborted attempts to remedy" the circumstances causing the out-of-home placement. Id.
I. Sufficiency Of The Evidence.
¶16 Juan claims insufficient evidence supported the superior court's finding of substantial neglect or willful refusal to remedy the circumstances necessitating an out-of-home placement. The court premised this finding on three bases: (1) Juan's failure to fully comply with UA testing, (2) Juan's failure to fully participate in visitation with the children and (3) Juan's failure to timely "provide CPS with a denial letter from [a private behavioral health provider] so further services could be implemented." ¶17 Juan argues he only missed UA testing due to travel for work and, in any event, that parental substance abuse was not a cause for the children's out-of-home placement. Possible alcohol abuse, however, was a concern from the outset. Juan delayed for almost three weeks before complying with the first UA, ordered just after J.Z.'s skull fracture, which raised a "red flag" for ADES. Juan's psychological evaluation also suggested potential episodic alcohol abuse, which could pose a heightened risk to the children's welfare in light of Juan's impulse control and anger management issues. ¶18 In light of those and other concerns, Juan was referred for UA testing and a substance abuse assessment and treatment, where Juan self-reported no substance abuse problems. Juan admitted submitting to only "about 50 percent" of the required UAs. Juan's sporadic compliance -- completing only 19 of 69 scheduled UAs, including two diluted samples -- raised particular concerns; because alcohol leaves the body more quickly than evidence of other drugs, "frequency of testing becomes a critical element." Although each UA showed Juan negative for alcohol, Juan's inconsistent testing did not eliminate substance abuse concerns. Accordingly, the court did not err by considering Juan's sporadic compliance with UA testing to indicate Juan's substantial neglect under A.R.S. § 8-533(B)(8)(a)-(b). ¶19 Juan next contends that his participation in visitation does not support the court's finding because, although he "missed a few visits with the children, the parents were fairly consistent with respect to participating in visits." The evidence stands in stark contrast to Juan's representation. After the children initially moved to live with the maternal grandmother, visitation had to be put on hold until the parents resolved a serious lice infestation. Although ADES provided information on how to eliminate the lice, the parents did not resolve the issue -- and thus begin visitation -- for five months. Thereafter, Juan attended only 29 of 45 scheduled visits over the next year. ADES in fact terminated parent aide services associated with visitation in May 2012 due to "parental non-compliance and no progress." At the time he testified at trial, Juan had not seen the children for six weeks, and could not independently recall the time of that last visit. Given Juan's sporadic participation in visitation, the court did not err by considering this to support a finding of substantial neglect to remedy under A.R.S. § 8-533(B)(8)(a)-(b). ¶20 Juan also argues the delay in behavioral health services was caused by ADES, not by Juan's "fail[ure] to provide CPS with a denial letter" as the court found. When a psychiatric evaluation was recommended for Juan, ADES initially requested Juan obtain AHCCCS insurance to cover services through a private behavioral health provider. Juan took no steps to follow through for at least four months, delaying evaluation and services. The court found the ADES "case manager made [an] extra effort" to schedule the psychiatric evaluation in the wake of Juan's inaction, and the evidence presented supports this finding. ¶21 Moreover, the court found that "the level of participation in services, particularly on [Juan's] part, was actually quite minimal," that because Juan believed "he didn't really need any services" and Juan was not "actually meaningfully participating in that service." The evidence showed Juan was "defiant" in therapy and would not engage with the therapist or acknowledge that his aggressive behaviors could negatively affect his parenting. Juan "just didn't think he needed to work on anything," and thus "has no motivation to seek treatment or change his behavior." This defiance does not represent an "appreciable, good faith effort[] to comply." See JS-501568, 177 Ariz. at 576, 869 P.2d at 1229. In light of the evidence presented, the court did not err by finding Juan "substantially neglected or willfully refused to participate in services that were designed to assist him" to remedy the cause for T.Z.'s, J.Z.'s and D.Z's out-of-home placements.
II. Adequacy Of Findings.
¶22 Juan argues the court erred by terminating his parental rights as to D.Z. without a formal written finding that ADES "made a diligent effort to provide appropriate reunification services." By statute, severance orders "shall be in writing and shall recite the findings on which the order is based." A.R.S. § 8-538(A); Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 240, ¶ 21, 282 P.3d 437, 441 (App. 2012). ¶23 In the portion of the order addressing grounds for termination of Juan's parental rights as to D.Z. pursuant to A.R.S. § 8-533(B)(8)(b), the superior court specifically recited that "[ADES] has offered [Juan] the following reunification services: a substance abuse assessment and treatment, a hair follicle test, random urinalysis testing, a psychological evaluation, a psychiatric evaluation, counseling, visitation, and transportation." In the following paragraph, where the court addressed the nine-months' time in care ground as to T.Z. and J.Z., the court stated that "[ADES] has made a diligent effort to provide appropriate reunification services" and again recited specific services provided. ¶24 Juan does not argue that the services provided were inadequate. Nor does he contend that the appropriate reunification services recited in the court's order applied only to T.Z. and J.Z., not to D.Z. Indeed, the record reflects that all such services were directed toward reunification with all three children, not just T.Z. and J.Z. Given that the superior court expressly found diligent effort to provide appropriate reunification services, and in light of the identity of services provided for reunification with all three children, the omission of language in the paragraph of the severance order specifically tailored to D.Z. is not grounds for reversal.
III. Amendment Of Motion To Terminate Parental Rights.
¶25 Juan argues the court erred by allowing ADES to amend the severance motion to allege fifteen-months' time in care, A.R.S. § 8-533(B)(8)(c), as an additional ground for termination as to T.Z. and J.Z. Because the superior court did not abuse its discretion in terminating Juan's parental rights as to T.Z. and J.Z. on the nine-months' time in care ground, any error in allowing amendment to add an additional ground for severance was harmless. See In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 355-56, 884 P.2d 234, 241-42 (App. 1994); see also Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (only one statutory ground for severance necessary).
CONCLUSION
¶26 The superior court's order terminating Juan's parental rights is affirmed.
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SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ______________
MICHAEL J. BROWN, Judge
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DIANE M. JOHNSEN, Judge